Kan. Supreme Court to rule on damages cap

Business, medical and advocacy groups are awaiting a decision from the Kansas Supreme Court on whether the state can continue to limit damages in lawsuits for pain and suffering.

Associated Press

Business, medical and advocacy groups are awaiting a decision from the Kansas Supreme Court on whether the state can continue to limit damages in lawsuits for pain and suffering.

The justices planned to rule Friday in the appeal of Amy C. Miller, a resident of the northeast Kansas town of Eudora who sued her doctor for removing the wrong ovary during surgery in 2002. Miller's case represents the most serious legal challenge in more than two decades to the state's $250,000 cap on non-economic damages in medical malpractice and other personal injury lawsuits.

The case has been on appeal since 2008. The Supreme Court has twice heard arguments from attorneys, the last time in February 2011.

The court is being urged by powerful groups such as the Kansas Chamber of Commerce and the Kansas Medical Society to uphold the law, which has been in place since 1988. But law professors, trial lawyers and advocacy groups such as the AARP have weighed in on the other side.

Miller was awarded almost $760,000 in 2006 by a Douglas County jury in her lawsuit against Dr. Carolyn N. Johnson. But the award included $400,000 for current and future non-economic losses, and Judge Steve Six — who later served as Kansas' attorney general — reduced that part of the award to $250,000 in keeping with the law. He also threw out $100,000 in damages for future economic losses.

Miller's attorneys contend the cap violates a section of the Kansas Constitution's Bill of Rights that declares the right to trial by jury "inviolate." They also argue it violates sections guaranteeing equal rights to all and the right to "remedy by due course of law."

Groups such as the AARP, the Disability Rights Center of Kansas and the state's Coalition Against Sexual and Domestic Violence have joined Miller's attorneys. They argue that the cap discriminates against women, the elderly and the disabled because non-economic damages tend to make up a larger percentage of their lawsuit awards, because people in those categories tend to have lower wages or be retired.

The Supreme Court upheld the cap in a 1990 decision, and law supporters contend in legal filings that imposing such limits is a policy decision that should be left to the Legislature. They also noted that legislators imposed the limits to keep liability insurance affordable and make the legal system more predictable.

Attorneys for the Kansas Chamber argued in one filing that, "it is critical to promoting a vibrant economic environment for all Kansans."

According to the American Medical Association, more than half of U.S. states limit non-economic damages. But in July, the Missouri Supreme Court struck down that state's $350,000 limit on non-economic damages in medical malpractice lawsuits.

In Kansas, the ruling will come amid years of frustration among conservative Republicans with the Supreme Court's rulings on a range of cases, which has fueled efforts to change how members of the state's appellate courts are selected. Gov. Sam Brownback is a conservative, and his allies expect to have majorities in both the state Senate and House after this year's elections.

So a ruling striking down the state's cap on non-economic damages could prompt conservatives to intensify their efforts to remake the selection process. Currently, a nominating commission screens applications for openings in the appellate courts and picks two or three finalists for the governor to consider, with no role for legislators.

For Miller, the case is tied to a battle with chronic pain that began when she was a girl. In 2002, she underwent surgery to have a potentially damaged right ovary removed, but the doctor removed the left one instead. Miller later had the second ovary removed, as well.

Johnson's attorneys have argued that when Johnson did the surgery, the left ovary appeared more damaged and it was likely Miller would have had to have both ovaries removed. Miller's attorneys have described what happened as "a surgical castration."